Genuardi Super Markets, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1968

172 N.L.R.B. 1357 (N.L.R.B. 1968)

GENUARDI SUPER MARKETS, INC. 1357
Genuardi Super Markets , Inc., Sandy Hill Market,
Inc., Genuardi's Norriton Market , Inc ., Genuar-
di's Audubon Market , Inc. and Retail Clerks
Union Local 1357, affiliated with Retail Clerks
International Association , AFL-CIO
Genuardi Super Markets , Inc., Sandy Hill Market,
Inc., Genuardi's Norriton Market , Inc., Genuar-
di's Audubon Market , Inc. and Retail Clerks
Union Local 1357, affiliated with Retail Clerks
International Association , AFL-CIO and Genuar-
di's Employees Association , Party to the Contract.
Cases 4-CA-4359 and 4-CA-4427
July 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 29, 1968, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in cer-
tain other unfair labor practices, and recommended
that such allegations of the complaint be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
the General Counsel and the Charging Party filed
answering briefs, and the Charging Party filed
cross-exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions , and recommenda-
tions' of the Trial Examiner, with the following ad-
ditions:
The Trial Examiner found, inter alia, that the
Respondent dominated the Association in violation
of Section 8(a)(2) and (1) of the Act. He based
this conclusion on evidence described in section III,
C, of his Decision, and on "the entire record." In so
concluding, he relied particularly on the following
circumstances: (1) All the Respondent's super-
visors, including store managers and department
heads, are participating members of the Associa-
tion; (2) the Respondent's management representa-
tive, Chase, and supervisor, Falco, have been the
Association's principal officers and guiding spirits;
(3) Chase and Falco appointed the Association's
executive and grievance committees; (4) the As-
sociation has been relatively inactive in normal
labor organization functions such as holding mem-
bership meetings and processing grievances; (5) the
Association's entire dues collections have been
used for Christmas parties held for management as
well as employees; (6) until the filing of the initial
charge in this case, the Respondent had checked
off for the Association its dues and initiation fees
without prior employee authorizations; (7) the
Respondent has compensated employee representa-
tives for time spent at negotiation sessions; (8) the
Respondent has prepared the Association's
required report to the United States Department of
Labor; and (9) the Association has no mailing ad-
dress separate from that of the Respondent.
We agree with the' Trial Examiner that the
Respondent's domination is clearly shown by the
record as a whole. However, we find the record not
only reveals evidence further substantiating the cir-
cumstances upon which he relied, but also shows
indicia of domination in addition to those he enu-
merated.
1. ADDITIONAL EVIDENCE IN THE RECORD
SUPPORTING CIRCUMSTANCES LISTED BY TRIAL
EXAMINER
A. Joseph Falco is a supervisor. James Albert
Chase is a management representative. At all times
material herein, they were, respectively, president
and vice president of the Association. They ap-
pointed the Association's executive committee.
That alone is evidence of domination, and the Trial
Examiner so observed. But that evidence is impor-
tant beyond the surface of the appointing process;
for, so far as the record reveals, if the Association
had any policymaking and administrative vehicle
other than the three elected officers themselves, it
was the executive committee. Thus, that commit-
tee, together with the officers, constituted the
I Because we adopt the Trial Examiner 's recommendation that the
Respondent withdraw recognition from and disestablish the Association,
we find it unnecessary to rule upon the merits of the Charging Party's cross-
exceptions
172 NLRB No. 121
1358 DECISIONS OF NATIONAL
"grievance" committee;2 it instructed the Associa-
tion's attorney to prepare checkoff authorization
forms (when finally they were distributed); the
1967 negotiations to reopen the contract were held
at its direct initiative;3 and it selects the successor
to the office of Association president in the event
of an incumbent 's resignation . 4 Hence, the execu-
tive committee appointees, who owed fealty to the
Respondent from the outset, exercised substantial
power.
B. The Trial Examiner stated that the Associa-
tion has been "relatively inactive in ... processing
grievances." The record shows, however, that the
"grievance " committee has never met to process a
grievance. That, considering the origins and com-
position of the "grievance " committee , is an im-
pressive indicium of domination.
II. ADDITIONAL INDICIA OF DOMINATION
A. Respondent's Participation in the 1966 Elections
The Respondent's witness , Chase, testified that
prior to the 1966 election there was no nomination
meeting and that no written notice was sent to the
employees advising them nominations for officers
would take place. As to how the nominations were
conducted, his only testimony was: "Word was
around that they wanted an election.... As far as I
can remember, the stores picked their own
nominees ." He further testified that the election
ballots were "prepared" by the courtesy girls.5 Pau-
line Martello6 also testified concerning the conduct
of the election. She indicated that "The Company
made up a ballot with six peoples ' names on it"; the
employees then voted; the ballots were then
"turned over, apparently to the main office"; and
"they [ management ] sent a letter down ," which an-
' Article VI ( Grievances and Arbitration ) of the 1 966-68 collective-bar-
gaining agreement makes express reference to "the Grievance Committee"
of the Association The Respondent 's witness , Chase, testified , "We have
always called the grievance committee the officers and the executive com-
mittee If there was ever a grievance-which we have never had a real
grievance-we would have the executive committee and the officers " It is
true that this "grievance " committee was inactive But this fact increases,
rather than diminishes , the significance of the executive committee ap-
pointments by management representatives . We have long held that Sec
8(a)(2) is violated when an employer sits on both sides of the bargaining
table That seating plan , of course, is equally unlawful at the grievance ta-
ble.
' The Respondent 's witness, Chase, testified without contradiction on
direct examination that , if he remembered correctly , the executive com-
mittee came to him and Falco "and asked us if we would go to the Genuar-
di's (sic ] and ask them if they would consider reopening the contract to
part -timers only "
' Based on the uncontradicted testimony of Pauline Martello This
procedure is established by the Association 's constitution and bylaws It
was used when Falco resigned around September 1967
' The courtesy girls were , while on worktime , under the direct supervi-
sion of Management Representative Arthur Stover This is so regardless of
LABOR RELATIONS BOARD
nounced the winners of the election . As the Trial
Examiner found, the election was held at the four
stores during working hours . In at least one store,
the manager (Phillip Scottie) admittedly par-
ticipated in the ballot count.
Hence, the 1966 election had questionable
procedures , resulting from the Respondent's par-
ticipation . They are evidence of domination.
B. Respondent 's Participation in the Association's
Grievance Machinery
In finding domination present, the Trial Ex-
aminer correctly relied, inter alia, on the fact that
Chase and Falco appointed the grievance commit-
tee. But , as noted above, this committee has never
met to process a single grievance . We conclude that
this was because Chase-individually-processed
them .7 Indeed , in at least one case he alone disposed
of it, without first consulting anyone (or, more ac-
curately, anyone else) from management, uni-
laterally and on-the-spot.8 That, plainly, was a sin-
gle-handed arrogation of a bipartite function. It is
evidence of domination.
C. Inaccessibility of the Association 's Constitution
and Bylaws to Association Members
As of the time of the hearing in this case, Pauline
Martello had been employed by the Respondent
continuously for over 8 years. She became a
member of the Association in 1958. In 1966, she
was elected an officer. As such she was charged
with custody of the Association's constitution and
bylaws.9 Yet she never saw them until after the
Retail Clerks Union began its organizational drive;
whether , while preparing ballots, they were acting in their capacity as store
employees or as Association ministrants
Not bearing on the election , but illuminating nevertheless , is another ser-
vice performed by these supervisees of Stover The Respondent collected
Association dues for over 10 years without written authorization . Ultimate-
ly (after the Retail Clerks ' organizational campaign had started ) checkoff
authorization forms were prepared At that point ( according to the uncon-
tradicted testimony of Albert Chase ) the courtesy girls were instructed, by
whom the record does not disclose , to pass out these forms and explain
them to all employees-at the stores, during worktime and with their
paychecks
° Generally credited by the Trial Examiner
' We cannot determine from the record before us whether any other
member of the grievance committee did this . Apparently , neither Martello
nor Falco did since , according to Martello's uncontradicted testimony,
neither was even aware who composed the grievance committee until mid-
1967 What is clear is that Chase admitted having processed several
grievances.
° So his own testimony reveals The particular grievance involved a
question of time off to use the ladies ' room when necessary
' These documents were drafted in 1956 and were never amended or
revised
GENUARDI SUPER MARKETS, INC. 1359
furthermore, the copy she finally did get (in 1967)
was obtained from the Retail Clerks.10 Chase, when
questioned by the Trial Examiner, did not deny that
copies were never distributed to employees. Until
May 1967, in short, the Respondent had exclusive
possession and control of the Association's con-
stitution and bylaws and their implementation."
This total control of the organization's charter and
rules is evidence of domination.
D. Inaccessibility of the Collective-Bargaining
Agreement to the Association Members
The Respondent argues that even if the Associa-
tion has been dominated by management represent-
atives, it ought not be disestablished. Elsewhere
the Respondent points to the "substantial" benefits
employees have obtained over the years "as a result
of arms-length bargaining ." All the more incongru-
ous, then , is the secrecy imposed on these contract
benefits by the principal officers of this labor or-
ganization . Several of the General Counsel's wit-
nesses testified without contradiction that they had
never seen a copy of the current or prior contracts,
despite repeated requests. Indeed, Pauline Martel-
lo's efforts to see the 1966 contract, made while
she was an officer, and on behalf of several other
employees, were equally futile: Chase and Falco
maintained an uninterrupted monopoly on contract
information. Even when, under pressure'12 Falco
finally called a meeting to read the contract aloud
and, with Chase, answer questions about it, no one
could tell whether the reading was verbatim.
Chase and Falco did attempt to justify their con-
duct. Falco told Martello she could not see the only
copy of the 1966 contract because "when he had
gotten it he was told that if he let it out of his hands
it would cost him his job ." Although he later re-
lented ,13 he told her "[it was ] not to leave the store.
I was told to keep [it] at the store at all times."
Chase testified on direct examination that he per-
mitted employees to read the contract , "but we
only had one and I told them they could not take it
out of the store ." Asked why there was only one
copy of the contract , he repnea:
Well, we tried to save as much money as we
could . We always felt that this way at the end
of the year-we would give them this big time,
big Christmas party and leave them enjoy the
money they had already put in there, which
was $12 . 00 a year. [ Details of parties .] Plus we
gave out $400 or $500 worth of nice door
prizes with it.
Falco's version admits exclusive managerial con-
trol and restrictions over a matter primarily the
concern of a labor organization and its member-
ship; and Chase 's excuse reveals the Association's
abdication to the Respondent of its control over
that contract . Neither explanation justifies their fur-
tive interment of the 1966 agreement in the private
drawers of the Respondent.
E. Respondent 's Exclusion of the Association's Only
Nonsupervisory Official From all Significant
Representation of Employees
1. Chase and Falco , without consulting Martello,
selected the important executive committee.14 In-
deed, Martello did not even know who was on it
until mid-1967 ( and then learned the composition
from an agent of the Retail Clerks Union ). In fact,
when she asked Falco, around May or June 1967,
10 This copy , she testified , was "hand-written "
" The apparent irrelevancy of the constitution and bylaws to the As-
sociation 's day-to-day operations is illustrated by Chase's own testimony
Thus, he testified concerning election rules
Q [Cross-examination by Mr. Simonoff, counsel for the Charging
Party] Well, with regard to the Association 's bylaws, isn't it true that
there is no provision in the bylaws for the office of vice president9
A [By Albert Chase, vice president of the Association ] I'd have to
look at it
Q. You don 't know?
A It's been so long since I've seen it
Q. You haven 't seen it for how long?
A. Well, I gave it to Mrs Martello -Polly9
TRIAL EXAMINER No discussions.
THE WITNESS Okay.
Q (By Mr Simonoff) You don't have access to it now, is that what
you are saying9
A No sir, I turned it over when I was made vice-president
Q Now the nominees [ in the 1966 election ], were they running for
specific offices?
A. Yes, they were
Q. You mean there was somebody who was a candidate for pre-
sident , a candidate for vice-president , and so on7
A Now wait If I remember correctly , the highest vote was to be
president , the second vote was vice -president , and the next was secre-
tary-treasurer
Q Was that according to your bylaws9
A As I said before, I can't remember I haven't seen the bylaws for
quite a while
'z Pauline Martello testified "[We] kept pestering [ Falco] to let us see
the contract and some of them even wanted copies printed up to hand out
to each employee So, finally, he came in and said that we would have a
meeting "
13 Martello testified without contradiction that Falco made the contract
available only after the Retail Clerks began its organizational campaign
14 The record does not disclose whether a procedure for choosing the ex-
ecutive committee was ever codified in the Association's rules The record
does show that , in 1956, the year the Association was formed, at least one
member of the executive committee was elected by the general member-
ship . The Association's first president, secretary, and treasurer were
elected at the same time Thus, in 1956 , it had a total of four elected offi-
cials In 1966, however, all four members of the executive committee were
appointed , and only three Association officials were elected , although the
constitution and bylaws were never amended or revised
Against that background, Chase at first testified ( twice , on direct and on
cross-examination ) that "the officers" of the Association-he, Falco, and
Martello-made the four 1966 appointments to the executive committee
Only on further cross-examination did he admit that Martello was not even
consulted , and that he made one, and Falco three, of the four appoint-
ments
1360 DECISIONS OF NATIONAL
he told her he did not know the identity of execu-
tive committee members either and would have to
find out.
2. Martello had never heard of any grievance
committee until she- inquired following her
daughter's June 1967 discharge. At that time, she
asked Falco, and only then learned who was on it.
3. Martello had never heard of the Association's
constitution or bylaws, with whose custody she was
charged as secretary-treasurer, until she had held
office for over a year.
4. She was repeatedly denied access to the con-
tract by Chase and Falco.
5. She had no knowledge of who replaced Falco,
upon his resignation, until "[t]hey posted a notice
on the bulletin board saying that it was, I believe his
name is Joe Secoria. I have never met him."
6. Martello's request for a special Association
meeting, to consider its dissolution or merger with
Retail Clerks Union Local 1357, was denied by Fal-
co.15
We have difficulty in imagining a more thorough
exclusion of a nominal officer from the active
leadership of a labor organization than the forego-
ing circumstances show. Whatever representation
Martello might otherwise have given Association
members was foreclosed by her nonparticipation in
selecting the members of the executive and
grievance committees; her ignorance of who com-
posed them; her lack of access to the constitution,
bylaws, and contract provisions; her nonparticipa-
tion in the appointment of Falco's successor; and
her lack of power to help arrange a membership
meeting.16 All these limitations, the record clearly
shows, are directly chargeable to Chase and Falco.
The result was the effective and thorough exclu-
sion-not to say preclusion-of the only nonsuper-
visory official from management of the Associa-
tion's affairs. Those left with the remaining-and
exclusive-power were representatives of the
Respondent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein , and orders that the Respondents,
Genuardi Super Markets, Inc., Sandy Hill Market,
Inc., Genuardi 's Norriton Market , Inc., and
Genuardi 's Audubon Market, Inc., their officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner 's Recommended
Order , as so modified:
LABOR RELATIONS BOARD
1. In paragraph 1(c) substitute the word
"require " for "authorize."
2. Substitute the Notice to All Employees, at-
tached hereto as Appendix, for that recommended
by the Trial Examiner.
"The request was made in the form of a petition signed by Martello and
several others
16 Her limitations in all these respects cannot be explained away on a
conflict-of-interest theory ( see Trial Examiner 's Decision , fn 19) Some of
these incidents , e g , the appointments to the executive committee follow-
ing the 1966 election of officers , clearly predated the organizational cam-
paign of the Retail Clerks , while others , e.g , ignorance of the contract
provisions , are not even justified on that theory
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to
give evidence, the National Labor Relations Board
found that we, Genuardi 's Super Markets, Inc.,
Sandy Hill Market , Inc., Genuardi 's Norriton Mar-
ket, Inc ., and Genuardi 's Audubon Market, Inc.,
violated the National Labor Relations Act, and or-
dered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form , join , or help unions
To bargain collectively through a
representative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these
things
Accordingly, we give you these assurances:
1. As to your rights as employees:
WE WILL NOT do anything that interferes
with the rights listed above.
WE WILL NOT ask you any questions about
the union attitudes or activities of any of our
employees.
WE WILL NOT spy on your union meetings or
union activities.
WE WILL NOT try to persuade you, in any
way that unlawfully puts pressure on you, to
support one union rather than another.
WE WILL NOT fire you or take away any cur-
rent job benefits-or threaten to do either-
because you join or support Retail Clerks
Union Local 1357, or because you form, join,
or help any other union.
GENUARDI SUPER MARKETS, INC.
WE WILL NOT give you any job benefits-or
promise them-because you refuse to join or
help any union; nor will we do this because you
form, join, or help a union that we prefer.
II. As to the employees we fired:
The National Labor Relations Board found that
we fired William Hartsell, Jr., and Jane Martello
because they supported the organizational cam-
paign of the Retail Clerks Union Local 1357. The
Board ruled that our firing them for this reason vio-
lated the National Labor Relations Act.
WE WILL therefore offer to give them back
their jobs with full seniority, and all other
rights and privileges.
WE WILL also make up any pay they lost,
with 6-percent interest.
WE WILL notify them, if presently serving in
the Armed Forces of the United States, of their
right to full reinstatement, upon application, in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
III. As to the Genuardi's Employees Association:
The National Labor Relations Board ruled that
we unlawfully dominated, assisted, and interfered
with the Association. The Board based this ruling
on a number of illegal acts and statements of our
supervisors.
We hereby disestablish the Genuardi's Em-
ployees Association-completely and permanently.
By doing this, we will no longer be able to "recog-
nize" or "negotiate" with it as your collective-bar-
gaining representative; and you are free to select
any such representative that you wish.
WE WILL no longer give effect to any con-
tract we have with Genuardi's Employees As-
sociation. However, we are not required to
change any wage schedule or working condi-
tions which exist at this time.
WE WILL repay you all dues and fees you
paid to the Association after January 14, 1967,
with 6 percent interest.
WE WILL NOT dominate, assist, or interfere
with any other labor organization which you
may choose as your collective-bargaining
representative.
GENUARDI SUPER
MARKETS, INC., SANDY
HILL MARKET, INC.,
GENUARDI'S NORRITON
MARKET, INC.,
GENUARDI'S AUDUBON
MARKET, INC.
(Employer)
Dated By
(Representative ) (Title)
1361
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut &
Juniper Streets, Philadelphia, Pennsylvania 19107,
Telephone 597-7601.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This
proceeding was heard before me in Philadelphia,
Pennsylvania, on November 20-22 and 27-28, pur-
suant to charges filed between July 14 and October
2 and consolidated amended complaint issued on
November 6, 1967.' The complaint alleged that
Respondents violated Section 8(a)(1), (2), and (3)
of the National Labor Relations Act. Respondents
denied commission of the unfair labor practices
charged. All parties appeared and were afforded
full opportunity to be heard and to examine and to
cross-examine witnesses . Briefs were received from
all parties except the Party to the Contract.
Upon the entire record' and from my observation
of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENTS
Respondents are affiliated Pennsylvania corpora-
tions, operating retail food stores in the Philadel-
phia, Pennsylvania, area. All four have common of-
ficers, owners, and directors, formulating and ad-
ministering a common policy for their employees.
During the past year, a representative period, the
gross volume of business of Respondents (hereafter
collectively called Respondent or Company) ex-
ceeded $500,000. During the same period, Respon-
dent had a direct inflow of goods and materials, in
interstate commerce, valued in excess of $10,000. I
find that at all material times Respondent has been
and is a single employer engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Clerks Union Local 1357, affiliated with
Retail Clerks International Association , AFL-CIO
(Charging Party , herein called Union or Retail
Clerks), is a labor organization within the meaning
of Section 2(5) of the Act.
Genuardi 's Employees Association ( with whom
Respondent has had contractual relations, herein
called Association ) is a labor organization within
the meaning of Section 2(5) of the Act.
I Unless otherwise noted, all dates herein refer to the year 1967 At the
hearing I granted General Counsel's motion to amend the caption of the
complaint to include Genuardi's Employees Association, Party to the Con-
tract.
2 Transcript corrected by my order , on notice , dated March 6, 1968
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
III. THE UNFAIR LABOR PRACTICES
A. Background; The Issues
As hereafter detailed, Respondent recognized the
Association as its employees' bargaining represent-
ative in 1956 and has since maintained contractual
relations with it. In May 1967, the Retail Clerks
commenced an organizational campaign at Respon-
dent's stores and it held its first meeting on May 17.
The complaint alleges that on the next day, May
18, Respondent discriminatorily discharged one of
the participants in that meeting. At another Union
meeting held on June 20, a group of employees
signed a petition for a special Association meeting
to consider dissolution of the Association or its
merger with the Retail Clerks. On June 26, Respon-
dent discharged a second employee-a signer of
this petition and an active Union adherent-al-
legedly because of Union activities. The complaint
alleges that on various other dates Respondent dis-
criminatorily assigned less desirable work schedules
to two additional employees and that it discrimina-
torily transferred still another employee from one
store to another.
The specific issues are whether Respondent vio-
lated: (1) Section 8(a)(2) of the Act by dominat-
ing, assisting , and interfering with the administra-
tion of the Association; (2) Section 8(a)(3) of the
Act by discriminatorily discharging and failing or
refusing to reinstate two employees (Jane Martello
and William Hartsell, Jr.), by discriminatorily trans-
ferring another employee (Pauline Martello) to
another store, and by discriminatorily changing
work schedules of two additional employees
(Dorothy Hartsell and James Anderson); and (3)
Section 8(a)(1) of the Act by the above and other
acts (including coercive interrogation, threats of
reprisals, surveillance of union activities, and
promises of benefits) to discourage Union activity.
Another issue is Respondent's responsibility for
conduct of alleged supervisors or agents.
B. Supervisory and Agency Issue3
Respondent employs approximately 250 em-
ployees in its four stores." The five Genuardi
brothers, officers or directors of the corporations,
have overall supervision over operations. Thomas
(Dominick) Genuardi, a vice president, has overall
supervision over meat operations and personnel
and spends most of his time in Jeffersonville. James
(Vincent) is vice president in charge of grocery
operations and spends most of his time in Sandy
Hill. Frank, secretary-treasurer, works in Swede
Square and handles dry goods for all stores. Joseph,
in Audubon, is in charge of produce and frozen
foods. Charles, president, was the manager of
Respondent's first (Jeffersonville) store when it
opened in 1940.
Store managers : Each of the stores has a manager
answerable to one or more of the Genuardis. Dur-
ing the period here involved, Frank Von Rohr was
manager at Sandy Hill and Phil Scottie at Swede
Square. The managers are salaried and attend
weekly or biweekly meetings with a Genuardi.
Although they perform regular and routine em-
ployee tasks (such as stacking merchandise and
stocking shelves), they also set up work schedules
and assign work. Thomas Genuardi admitted that
the store manager 's "primary duties are to function
in the capacity of ourselves [the five brothers]
when we are not there." He also admitted that Von
Rohr was made manager at Sandy Hill on May 1
"to straighten up the situation" (Thomas claimed
the employees were lax, "getting away with murder
down there") and to see to it that the employees
were following company "instructions." James
Genuardi characterized Von Rohr as "the boss"
who "saw to it" that an employee would do "what
he was told." Although the managers had no power
to hire and fire, it is clear that their recommenda-
tions were given weight.5
Department managers: Each store has a grocery,
meat , and produce department headed by a
manager . Like store managers (and unlike regular
employees) department managers are on salary
(based upon volume of business). Also like store
managers , they meet periodically with the Genuar-
dis and schedule and assign work. They may move
employees from job to job within a department, and
reprimand and discipline them. Thomas Genuardi
admitted that employees are "required to do what
their department head tells them to do." Unlike
hourly paid employees, department (and store)
managers participate in a profit-sharing plan.
Joseph Falco, for 7 years meat manager at Sandy
Hill (and in that capacity supervising 10 to 12 em-
ployees), occupies a special status. Like all meat
department managers , Falco works under overall
direction of Thomas Genuardi. However, he also
places orders for purchase of meat for all four
stores and acts as liaison man between Thomas and
other meat department managers , visiting all stores
to "try to help them along" with problems. Thomas
testified , "I'm hoping some day that maybe he'll
The findings in this section are based on largely undisputed testimony,
primarily that of three Genuardi brothers
' "Jeffersonville ," "Sandy Hill," "Swede Square ," and "Audubon
Respondent 's administrative offices are at the Jeffersonville store
' Thomas Genuardi 's attempt to minimize the authority of his managers
(as well as of other individuals whose supervisory and agency status is here
in issue ) and to inflate the Genuardis ' exercise of control over all opera-
tions is transparently artificial Thus, when asked if he had ever discharged
an employee on a manager 's recommendations , he evasively replied, "Not
until I 've analyzed all aspects of the discharge It depends on the situa-
tion," but when pressed further admitted that he gave "weight" to such
recommendations At another point, he stated that "anybody can recom-
mend discharge," including "a regular employee " Although admitting that
managers set schedules , he characterized this as "mostly routine " And
while further conceding that store managers directed the employees' work,
he averred that the work "is pretty much known to all the employees, as to
what their job is to do," acknowledging that the manager "sees to it that it's
carried out " That store managers are supervisory officials is further
evidenced by their conduct hereafter described in connection with other
aspects of the case , including the treatment and discharge of five em-
ployees (infra, E and F)
GENUARDI SUPER MARKETS. INC. 1363
step into my shoes." Falco is not paid "any addi-
tional money because of his duties over and above
being the meat department manager in one store."
James Albert Chase is Respondent's assistant
grocery buyer, working under direction of James
Genuardi. He has been with the Company for 20
years, 2 as store manager (before his present job).
As assistant buyer, Chase has no office or clerical
assistants. He "assists ... Jimmy [Genuardi] in
grocery buying.... [and] goes from store to store
to try to help the store managers ... in any way
that he can." Thomas Genuardi described Chase as
"more or less of a trouble shooter." He attends
regularly scheduled meetings of grocery depart-
ment managers, substitutes for store managers dur-
ing periods of illness, and extends "help [to them]
whatever he can ... to make their job easier."
Thomas Genuardi testified that Chase gives "advice
as to what they [store managers] should carry and
not carry" in the stores, adding that when store
managers "are asking for help, I presume they
would do what he suggested they do." Thomas in-
sisted, however, that store managers are under no
"instructions" to comply with Chase's "sug-
gestions." Although his duties include routine jobs
such as stocking shelves, checking goods, and
cleaning floors, Thomas admitted that Chase works
"pretty much on his own." Chase is salaried, is paid
more than any store manager, and is not covered by
Respondent's collective agreement with the As-
sociation (infra).
Arthur Stover works out of Respondent's Jeffer-
sonville office under overall supervision of Charles
Genuardi, and his duties include bookkeeping and
office work. In addition to directing three or four
clericals, Stover gives instructions to "courtesy
girls" of all stores. These girls, in turn, look to
Stover for guidance in performing their day-to-day
duties and regard him as their "boss." Stover,
salaried, is not covered by the Association's collec-
tive agreement.
I find and conclude that Respondent's store
managers and department managers (including Fal-
co) have "authority, in the interest of the employer
... responsibly to direct" employees within the
meaning of Section 2(11) of the Act; and, there-
fore, that they are supervisors for whose conduct
Respondent is accountable. See, e.g., Agawam Food
Mart, Inc., 162 NLRB 1420; Food Fair Stores, Inc.,
138 NLRB 1, 5-7; Bailey Department Stores Co.,
120 NLRB 1239, 1242. See also Ohio Power Com-
pany v. N.L.R.B., 176 F.2d 385 (C.A. 6); N.L.R.B.
v. J.W. Mays, Inc., 356 F.2d 693, 698 (C.A. 2).
I further find and conclude that during the period
material herein James Albert Chase and Arthur
Stover acted as management representatives and
that Respondent's rank-and-file employees believed
with just cause that they were acting for manage-
ment. Accordingly, Chase's and Stover's conduct is
attributable to Respondent, even if Chase and
Stover did not literally fall within the definition of
supervisor under Section 2(11) of the Act. See
N.L.R.B. v. Solo Cup Co., 237 F.2d 521, 523-524
(C.A. 8); N.L.R.B. v. Des Moines Foods, Inc., 296
F.2d 285, 287-288 (C.A. 8). Cf. Looney Sheet
Metal Construction Co., Inc., 160 NLRB 1635,
1637; Square Binding and Ruling Co., Inc., 146
NLRB 206, 210-211.
C. Alleged Domination of and Assistance to the
Association , in Violation of Section 8(a)(2) and (1)
1. The evidence6
The Association came into existence in 1956,
when Respondent operated only one store. Albert
Chase, then a grocery clerk, was its founder. Chase
continued as the Association's prime leader over
the years, including the period he was store
manager. Satisfied that the Association represented
a majority of its employees in 1956, Respondent in
that year accorded it recognition and negotiated a
collective agreement with it.
The Association's constitution and bylaws,
drafted in 1956, have never been revised or
amended. Pauline Martello, who became Associa-
tion secretary-treasurer in 1966 and as such was
charged with custody thereof, testified that she did
not know of their existence until April 1967. All
Genuardi personnel, including store managers and
department managers , are eligible to become and
are members.7 Chase had been Association pre-
sident continuously until 1966, when he was
elected vice president. The 1966 election was held
in the four stores during working hours, the ballots
distributed by "courtesy girls." Three of the six on
the ballots receiving most votes were elected to of-
fice. In at least one store (Swede Square) the
manager (Scottie) participated in the ballot count.
Falco (a meat department manager), Chase
(assistant grocery buyer), and Pauline Martello (a
courtesy girl) were elected president, vice pres-
ident, and secretary-treasurer. After the election,
Falco and Chase selected as members of the As-
sociation executive committee an employee from
each store.9
The Association does not have its own office,
telephone, and stationery. It does not have a strike
fund. Mail occasionally received (e.g., bank state-
ments) are sent to Respondent' s general office. As
a rule, the Association holds no membership
meetings . Chase could recall only three or four
Findings in this section are based primarily on composite , essentially
uncontradicted testimony of Pauline Martello, Albert Chase , Thomas
Genuardi , and William Hartsell, Jr
I Chase testified that " All employees . except the Genuardis," are
eligible for membership Arthur Stover , herein found to be a management
representative , is also a member
' Chase testified that there was no nomination meeting , indicating that
the candidates were informally selected by employees in various stores
Employee Pauline Martello testified that " the Company made up a ballot
with six peoples ' names on it "
Although Chase first testified that Pauline Martello participated in
these selections , he later admitted that she was not consulted.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings held off company premises in the past 11
years.10 Each member of the Association's approxi-
mately 200 members is required to pay an initiation
fee ($5 for full-time and $3 for part-time em-
ployees) and $1 monthly dues. Until July 1967,
Respondent deducted and turned over to the As-
sociation checked-off dues, without written em-
ployee authorizations. In July, the Association in-
structed the courtesy girls to pass out checkoff
authorizations with paychecks and to tell em-
ployees wishing to continue dues checkoffs to ex-
ecute written authorizations; or, if not, to pay their
dues directly to the Association." Almost all dues
collected are used for the Association's annual
Christmas party for members and guests.12 Chase
testified that the Association "tried to save as much
money as we could" so that "at the end of the
year-we would give them this big time, big Christ-
mas party, and leave them enjoy the money that
they had already put in there."
The current collective agreement , executed in
May 1966, covers usual terms and conditions of
employment, including wages, hours, holidays, va-
cations, seniority, grievance arbitration, and a no-
strike and no-lockout clause, as well as union-
security and checkoff provisions. General Counsel's
employee witnesses credibly testified that they had
never seen a copy of this and prior contracts. Pau-
line Martello testified without contradiction that
after she was elected Association secretary-treas-
urer in 1966, she repeatedly requested Association
President (and Sandy Hill Meat Department
Manager ) Falco for a copy of the contract, explain-
ing she needed it to answer employees' "questions
concerning their wages and numerous things."
Falco refused to show her a copy, since "when he
had gotten it he was told that if he let it out of his
hands it would cost him his job." He promised,
however, "to find out what he could do about it."
After further "pestering him" for the contract, in
April 1967 Falco called a meeting of employees (in
the Firehouse, off Company premises ), where he
read it aloud and with Chase (Association vice pres-
ident) answered questions. Falco still refused to
"let the contract out of his hands," rejecting an em-
ployee's specific request to be allowed to see it. In
May or June, after the Retail Clerks had inaugu-
rated its union drive (supra, A), Falco agreed to
10 Association officials , however , have met separately with groups of em-
ployees ( by departments ) to discuss and vote upon contract proposals
11 It was stipulated that between January 1967 ( the beginning of the
10(b) limitation period ) through July 1967, Respondent deducted $1,341
in dues from employees in all four stores
" Pauline Martello, the Association's secretary -treasurer , testified that
after some $2,000 disbursements for the 1966 Christmas party, "very little
[was) left" in the treasury . The Association's Labor-Management and Wel-
fare Pension Report to the U S Department of Labor for 1966 (the record
indicates that this was prepared for the Association by Respondent's book-
keeper , Stover ), shows no office and administrative expenses or disburse-
ments for employee benefits There is evidence that Association income is
occasionally used to purchase stationery and gifts for ill employees and
newlyweds
13 As noted , the above findings are based on the uncontradicted
permit Martello to see the contract, also complying
with her request for a list of Association members,
stipulating, however, that contract and list "were
not to leave the store." 13
General Counsel's employee witnesses credibly
testified that they knew of few, if any, grievances
processed under the collective agreement. Chase
testified that "we have never had a real grievance"
requiring handling by' a grievance committee, but
that such situation would be handled by "the ex-
ecutive committee and the officers." Pauline Mar-
tello credibly testified, without contradiction, that
the day after her daughter Jane was discharged in
June (infra, E, 1), she asked Falco (then Associa-
tion president) if there was a grievance committee
and, if so, who its members were. Falco replied that
they had one but would "have to find out exactly
who they are. "14
Chase credibly testified that the Association had
negotiated and obtained increases in wages and in
insurance benefits from Respondent over the years.
Thus, between May 1956 and May 1967, the start-
ing hourly rate for full-time employees had in-
creased from $1 to $1.80, and the top scale from
$1.50 to $2.50. The top scale for meat cutters in-
creased from $2 to $3.45 and for part-time em-
ployees of all categories from $1.20 to $1.90 in the
same 11-year period. Medical benefits in that
period increased from $10 per day to a flat $500
plus 80 percent of costs over this figure. In
June-July 1967 (in middle of the current 1966-68
contract), the Association negotiated and obtained
a top scale of $2.50 per hour for part-time em-
ployees.lS Respondent agreed to this change after
two meetings with Chase and Falco and a group of
part-timers representing the Association. These
meetings were held on Company time, with at least
two of the attending part-timers selected by
Grocery Manager Embly of the Sandy Hill store.
Company Bookkeeper Stover also was present. In
addition to higher wages, Respondent granted the
part-timers ' request for approved vacation benefits,
but not paid holidays.
2. Conclusions
Based on the foregoing and the entire record, I
find and conclude that since January 14, 1967 (the
testimony of Mrs Martello . Falco did not testify Chase conceded that he
told employees who had asked him for the contract that "they could not
take it out of the store" because the Association had only one copy since
"we tried to save as much money as we could " for the annual "big Christ-
mas party "
" Another employee ( Dorothy Hartsell) indicated , however, that she
knew that in addition to Falco another employee ( Wentz ) served on the
committee (infra, F, 2)
" The new rate was incorporated in a "supplemental agreement ," signed
July 17 , 1967 General Counsel and Charging Party contend that the sup-
plemental agreement , the only mid-term contract in the parties ' 1l-year
relationship, was designed to discourage the Retail Clerks' organizational
efforts then in progress The same contention is made with respect to most
recent medical benefits put into effect on October 1, 1967 The record
does not support these contentions
GENUARDI SUPER MARKETS, INC.
statutory limitation period), Respondent has
dominated and interfered with the administration of
the Association and has contributed support to it,
in violation of Section 8(a)(2) and (1) of the Act. I
rely particularly on the circumstances that all of
Respondent 's supervisors , including store managers
and department heads, are participating members
of the Association; that its management representa-
tive, Chase, and Supervisor Falco have been the
Association 's principal officers and guiding spirits;
that, among other things, these two have appointed
the Association's executive and grievance commit-
tees; that the Association has been relatively inac-
tive in normal labor organization functions such as
holding membership meetings and processing
grievances ; that its entire dues collections have
been utilized for Christmas parties (for manage-
ment as well as employees ); that until the filing of
the initial charge herein, Respondent had checked
off for the Association its dues and initiation fees
without prior employee authorizations; that
Respondent has compensated employee representa-
tives for time spent at negotiation sessions; that
Respondent has prepared the Association's
required report to the U.S. Labor Department; and
that the Association has no separate mailing ad-
dress other than that of Respondent. See, e.g.,
N.L.R.B. v. Jas.H. Matthews & Co., 156 F.2d 706,
707 (C.A. 3); N.L.R.B. v. General Shoe Corpora-
tion , 192 F.2d 504 (C.A. 6), cert. denied 343 U.S.
904.
In reaching the foregoing conclusions , I have not
ignored the factors, stressed by Respondent, that
the Association was originally (over 11 years ago)
formed without employer interference and that it
has negotiated contracts and obtained benefits for
its members. These factors do not negate the em-
ployer domination overwhelmingly shown by the
record as a whole. The fact is that the employee
founder of the Association-Albert Chase-has
remained its guiding spirit in the ensuing years, in-
cluding at least the past 4 years when he has been
store manager and assistant grocery buyer. Indeed,
Chase was the Association's president and Falco,
another management representative ( meat depart-
ment manager ), was its vice president when the
current ( 1966) collective agreement was negotiated
with Respondent . These two managerial representa-
tives also were the Association's chief spokesmen in
the negotiation of the most recent (July 1967) sup-
plement to that agreement . An "employer cannot
be permitted, directly or indirectly, to sit on both
sides of the bargaining table ." Virginia Ferry Corp.
v. N.L.R.B., 101 F.2d 103, 105 (C.A. 4). See also
N.L.R.B. v. The Powers Regulator Company, 355
F.2d 506, 508 (C.A. 7).
I conclude that Respondent has dominated and
interfered with administration of and contributed
" Based on composite testimony of employees Jackmski and Scioli
Frank Genuardi admitted making the speeches , he did not testify as to their
specific content . Since the complaint fails to allege Genuardi's speeches as
1365
support to the Association , in violation of Section
8(a)(2) and (1) of the Act.
D. Alleged Coercive Statements and Interference
With Retail Clerks Organizational Activity, in
Violation of Section 8(a)(1)
1. The evidence
a. As previously noted, the Retail Clerks inaugu-
rated its organizational drive in May 1967. In June
or July, Frank Genuardi, in charge of Swede
Square, twice addressed employees during working
hours, speaking from notes. Genuardi told the as-
sembled groups that "all the Union wanted was our
[the employees'] money"; that the Association had
been too "busy" to hold meetings to "tell[ing] the
people what was going on," but it "was going to get
better"; and that "[i]f anybody is any kind of trou-
ble or got into anything that they can't get out of"
they could "see" "their supervisor" or Frank
Genuardi.1e
b. On May 19, 2 days after the Retail Clerks first
organizational meeting, Chase and Falco (company
managerial representatives and also Association of-
ficers) summoned Pauline Martello to the Sandy
Hill store office. Martello testified that after she
confirmed Chase's "understanding" that she
favored the Retail Clerks, Chase told her it was un-
fair for her "to remain" secretary-treasurer of the
Association (Martello had been elected to that of-
fice in 1966) and asked her to resign. Martello
refused, stating she "was elected to the position by
the employees" and if they did not want her "to
run" in another election she would not do so. When
Chase asked if other employees felt as she did,
Martello answered, that "at least 60 percent of our
employees already signed for the Union."
Chase admitted that he and Falco were "very
disturbed" about Martello's activity for the "out-
side union," that they asked her to "either work for
one or the other," and that when Martello insisted
on continuing to work for the Retail Clerks, they
asked her "to resign" from her Association posi-
tion. Chase denied telling her to "stop working for
the Retail Clerks," explaining that he only "ex-
pected her to work consistently." He also denied
telling her that her job would be "affected by this
inconsistent position," and asking her "if anybody
else was interested" in the Union.
I credit Martello's version of the incident in
preference to Chase's. Martello impressed me as a
generally frank and forthright witness, who, as
noted infra, F, 3, did not attempt to suppress facts
unfavorable to her case. It is noteworthy that
Respondent did not call Falco to testify.
c. Pauline Martello also testified that in June or
July Falco asked her to take a ride in his car. After
violations and since General Counsel indicated at the hearing that
testimony on this point was mere background to show " overall hostility," I
base no finding of violation thereon
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a short ride, Falco parked the car and asked Mar-
tello "to give up the idea of the Union"; said that it
"couldn't possibly get in"; and stated that he
"didn't want to see [her] hurt." When Martello
"kept telling him that[she] just couldn't dive on it,
because it was something that [she] believed in,"
Falco "kept trying to convince [her] that [she]
should give up." At one point Falco told her that if
she "would withdraw from the Union," he and
Chase would give her a statement in writing to the
effect that "if anything happened" to her as a result
of her activities on behalf of the Retail Clerks, they
"would pull a strike of all four markets." Falco ad-
ditionally stated that if she abandoned the Union
there would be "no problem of getting ... back"
her daughter, Jane, who was recently discharged
(infra, E, 1).
I credit Mrs. Martello's uncontroverted
testimony. As already noted, Falco did not testify.
d. Pauline Martello further testified that on May
18, the date of William Hartsell , Jr.'s discharge (in-
fra, E, 2), her store manager, Von Rohr, walked to
the courtesy desk where she worked. Von Rohr had
just finished talking to Hartsell who displayed his
union card to Von Rohr. Von Rohr said, "you're
awfully smart holding that Union meeting last night.
We know who's there and who's causing all the
trouble."
Von Rohr was not called to rebut Martello's
testimony . I credit it.
e. Employee Roszko, a meat department em-
ployee in Swede Square, testified that sometime be-
fore she signed a union card in June, her meat de-
partment manager , Wilkinson, called her to the em-
ployees' lounge and asked her if she knew
"anything about the Union going on" and if she had
signed a card. When Roszko denied signing a card
and disclaimed knowledge about the Union, Wil-
kinson said that "if you don't tell me , I'm going to
find out anyway because we have the list of
names ." After their conversation, he requested
Roszko to send another employee to speak to him.
Wilkinson admitted speaking to Roszko (around
May 26) as well as to another employee , explain-
ing, "Well about this time , there was quite a bit of
talk about the union around the stores; and I had
heard that certain people were being asked to sign
cards . And as the department manager , I thought
that I should talk to each one of these girls and let
them know my opinion, how I felt about the situa-
tion ." He denied, however, asking Roszko (and any
other employee) about signing a card or stating that
he had a list of names of those who signed. He ad-
mitted telling her "that certain people have been
"Roszko also testified as to several incidents in which W ilkinson al-
legedly harassed her because of her suspected union sympathies, including
one incident when he told her to "just better watch [her] step because
all day long I'm going to be on your back," and another incident when he
allegedly told her "that we were getting too smart that he had the per-
mission to clean house " I do not credit this testimony Roszko's account
appears to be colored and exaggerated Apparently, she intensely disliked
Wilkinson , and she and another employee ( Dawn Scioli ) admitted that
known to sign cards," that he "didn't think that we
needed this outside union," and that "we were
getting along just fine without it."
Although I have reservations concerning Rosz-
ko's credibility on other statements she attributed
to Wilkinson," I credit her testimony to the extent
described. To begin with, Dawn Scioli, another
meat department employee who impressed me as a
reliable witness, testified that Wilkinson had spoken
to her in similar vein around the same time.
Furthermore, Wilkinson by his demeanor as well as
words displayed a deep-seated hostility toward the
Retail Clerks and I do not believe that he concealed
his feelings from Roszko.'g Finally, Wilkinson either
exhibited poor memory or conveniently forgot all
that transpired in the 15-minute conversation with
Roszko, pleading inability to "recall" anything that
Roszko said to him.
f. Employee Jackinski testified that sometime in
June, before Jane Martello's discharge (infra, E, 1),
Swede Square Manager Scottie called her into the
backroom and discussed the Association and the
Union , "telling [her] things good about the As-
sociation." Scottie said, "you don't want a Union
because you won't be able to make up hours and it
will be run real tight and it won't be lenient like our
Association." When Jackinski asked whether Scot-
tie was saying this because she had just returned
from lunch with Jane Martello, Scottie answered,
"yes." Jackinski said, "if Jannie wants a Union
that's fine, but I didn't intend ... breaking up our
friendship over this."
Scottie did not specifically deny this conversa-
tion, although he generally denied "quiz[zing] any
employee about the Union activity of another in-
dividual in the store." I credit Jackinski's careful,
detailed, and forthright testimony in preference to
that of Scottie, who, as shown below, was less than
forthright in his testimony of a poll he conducted.
g. Jackinski and Scioli testified that in June or
July, after Jane Martello's discharge, Store
Manager Scottie conducted a poll to determine
whether employees were for the Association or the
Union. Jackinski testified that Scottie approached
her in the store, paper in hand, and asked her "who
I was for." When she said "as the Association
stands right now it's nothing so how can I vote for
it," Scottie answered, "well, they are making
changes and things are going to get better, and that
I wouldn't regret going with the Association."
Jackinski then agreed to be recorded in favor of the
Association. Scioli testified that when Scottie ap-
proached her, the latter asked what she "thought
about the Union" and whether she signed a card.
Roszko would often "agitate " or provoke Wilkinson by singing Union
songs
The extent of Wilkinson's antiunion hostility is evidenced by Scioli's
uncontradicted testimony to the effect that Wilkinson had admitted telling
her that he had refused to attend Scioli's wedding (at the end of May)
"because he [Wilkinson] was hurt, because he heard that [Scioli] was in-
volved with the Union
GENUARDI SUPER MARKETS, INC. 1367
Scioli denied signing a card, stated she "really
didn't care either way," and like Jackinski, agreed
to be recorded for the Association. Scottie then
discussed with her the reasons for Jane Martello's
discharge.
Scottie admitted polling about 50 store em-
ployees during working hours, asking each
"whether they were for the Union or for the As-
sociation." He testified that he carried a tally card,
checking under the respective heading, Union or
Association, each employee's preference. Accord-
ing to Scottie, he did not tell employees why he was
taking the poll, made no comments to employees,
and none asked him why he was polling them.
Asked to give "the purpose of this poll," Scottie
said, "Well, in my store I always had a very, very
happy store, and I heard a lot of grumbling about
the Association, so I decided to see whether or not
they were happy with the Association or not, so I
went around and took the poll on my own." Asked
whether he reported the results to anybody, he an-
swered, "I didn't report to anybody. It was just for
my own benefit" and stated that after tallying the
results (he testified that 99 percent expressed
preference for the Association) he "ripped [the
tally sheet] and threw it in a waste can."
I credit the employee witnesses' versions of the
polling. It stretches credulity to believe that, as
Scottie in effect claimed, he took a poll of 50 em-
ployees in a complete vacuum of conversation or
discussion. Equally incredible is his testimony that
he reported the results of the tally to no one, con-
sidering the expressed interest of the Genuardis, his
brothers-in-law, in the rival union movement.
2. Conclusions
I find and conclude that Respondent interfered
with , restrained , and coerced its employees in the
exercise of their self-organizational rights , in viola-
tion of Section 8(a)(1) of the Act, by and through
its supervisors and/or managerial representatives
and agents in questioning employees concerning
their union membership and sympathies , including
whether they signed union cards ; in inducing em-
ployees to abandon support of the Union; in imply-
ing that working conditions would be less favorable
if the Union came in; in creating the impression of
surveillance of its employees ' union activities; and
in conducting a poll as to its employees ' union sen-
timents . 19 Respondent 's conduct also constitutes
violation of Section 8(a)(2) of the Act, since its in-
evitable effect was to lend assistance and support to
the illegally dominated Association (supra, C) in
retaining its position as bargaining representative.
See The Powers Regulator Company, 149 NLRB
1185, 1186, enfd . 355 F.2d 506, 508 (C.A. 7).
E. Discharges in Alleged Violation of Section
8(a)(3) and (1)
1. Jane Martello
a. Martello's Union activities
Jane Martello was employed by Respondent from
June 1964 until discharged 3 years later, on June
26, 1967. Initially a cashier (or checker) in Swede
Square, she worked as a "courtesy girl" and part-
time cashier in Sandy Hill at the time of her
discharge. There is no evidence or claim of derelic-
tions in her work or attitude until advent of the
Retail Clerks in May 1967.
Martello, an active union (Retail Clerks) ad-
herent, made no secret of her union sympathies.
She signed a union card at the initial May 17 or-
ganizational meeting , attended by Sandy Hill
Grocery Manager Embly. She thereafter persuaded
10 employees at Sandy Hill and Swede Square to
sign authorization cards. In early June, while speak-
ing to grocery employee Cook in the backroom of
Swede Square concerning a union meeting to be
held that night at her home, Frank Genuardi ac-
costed her and asked her to leave. Martello was one
of five employees who, at the June 20 union meet-
ing in her home, signed the petition for an Associa-
tion meeting to consider Association dissolution or
merger with the Retail Clerks. It was she and em-
ployee Anderson who then hand delivered the peti-
tion to Association President (and Meat Depart-
ment Manager) Falco to arrange such meeting.
Jane Martello's identification with the Union was
a matter of common knowledge. As noted supra, D,
1, f, Swede Store Manager Scottie admitted to em-
ployee Jackinski, shortly before Jane's discharge,
that when he conversed with her about advantages
of the Association and disadvantages of the Union
he did so because she had just returned from lunch
with Jane. And employee Scioli credibly testified,
without contradiction, that when (at the end of
May or early June) she asked Scottie why store per-
sonnel had been treating her differently than be-
fore, Scottie said "because of [her] friendship with
Jane ... everyone assumed that [she] was involved
with the Union." The record indicates that Swede
Square Meat Manager Wilkinson similarly assumed
that Scioli had prounion tendencies because of her
association with Jane Martello.
b. Martello's discharge
On Monday afternoon, June 26, Thomas Genuar-
di called Martello aside in Sandy Hill (where she
was working) and asked her what she had been
doing at Swede Square the previous week. Jane ex-
" For reasons stated supra, fn 16, Frank Genuardi 's June or July speech
to the assembled employees is not found to be a violation of Sec 8(a)(1)
Nor do I find violative of Sec 8(a)(I) Chase's and Falco's request to Pau-
line Martello to resign from her office in the Association if she continued
her allegiance to the Union, considering the fact that that request was
ostensibly no more than an appeal by two Association officers ( Chase and
Falco ) to another Association officer ( Martello ) to avoid possible conflict
of interest
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained that she had gone there on her lunch hour
to buy a cake and while there checked her friend's,
Dawn Scioli's, timecard to see if she had punched
out for lunch.20 Genuardi said, "Well, that's no ex-
cuse. You have no business looking at timecards . .
.. You are discharged for two weeks." Then ac-
cording to Jane:
I said, "Well, to my knowledge discharge
means fired," and that I had never heard of
anybody being fired for two weeks. So I said,
"Tom, what does this mean ? Am I fired or
not?"
Then he said, "Do you want me to say
you're fired? All right, you are fired. Go punch
your time card and get out."
Jane then went to see her mother ( Pauline Martel-
lo) at the nearby courtesy desk to inquire what she
should do with the cash in her register. Seeing this,
Thomas Genuardi said, "You are not working here
any more. Get out." Jane left.
Thomas Genuardi testified that when he con-
fronted Jane Martello on Monday, June 26, he had
no intention of firing her. He stated that he merely
went to see her "to find out exactly why she had
been going through timecards" and why "she did
not heed to warnings about staying out of the
stores," intending to mete out only "a temporary
suspension." According to Genuardi:
she said that I couldn't do it to her and she
said, "If you want to fire me, fire me." And I
said, "Do you want to be fired?" She said,
"Yes." So I fired her.
I credit Jane Martello's version of the discharge
conversation. Observing her demeanor with care, I
was impressed with the straightforward, simple, and
convincing manner in which she testified on all
matters in issue . Her testimony remained substan-
tially unshaken throughout even on searching,
spirited cross-examination by able counsel for
Respondent. Thomas Genuardi's testimony, on the
other hand, was frequently characterized by
hedging, qualifications, and equivocations. I have
already alluded (supra, fn. 5) to his transparent at-
tempt in this direction in commenting on his less-
than-candid portrayal of the authority and power of
his store managers and of other managerial em-
ployees. Furthermore, insofar as the discharge in-
terview is concerned, Jane's testimony is in part
corroborated by her mother (Pauline Martello)
who overheard a portion of it. It is noteworthy that
although Respondent in its brief (p. 41) claims that
the conversation "was within earshot of other em-
ployees," it produced no witnesses to corroborate
Thomas Genuardi.
Employee Donna Morgan credibly testified,
without contradiction'21 that on May 24 she had a
"long" talk with Stover ( a management representa-
tive, supra, B) about the Association and the Union
" Jane testified that she did not look for Scioli in the backroom because
Frank Genuardi previously told her not to go there Genuardi admitted that
Jane explained she checked the card to see whether " her girlfriend was
working "
in Respondent 's main office . In course of the con-
versation , Stover asked Morgan whether she would
"frame Janie ." Morgan said "no," and the subject
was "dropped."
As previously noted ( D, 1, c), shortly after Jane's
discharge Meat Department Manager Falco at-
tempted to get her mother ( Pauline Martello) to
abandon the Union , stating there would be "no
problem " in getting Jane back to work if she
withdrew from it.
c. Contentions and conclusions
(1) In its brief (p. 40), Respondent contends
that Jane Martello "provoked the Respondent to
discharge her by her blatant act of insubordination
on June 26, 1967." It goes on to say (brief, pp.
41-42), "Miss Martello refused to accept discipli-
nary action. She boldly told Mr. Genuardi that he
could not temporarily suspend her and then
proceeded to dictate to Mr. Genuardi her own
terms of discipline .... Martello's failure to accept
disciplinary action was a direct challenge to
Respondent's authority .... Martello's gross act of
insubordination had to be met head-on in order to
maintain a minimal degree of discipline .... Miss
Martello's ultimatum: `If you want to fire me, fire
me,' forced Mr. Genuardi's hand. To back off after
such an ultimatum would have been out of the
question ...."
To begin with, Respondent's extravagant claims
about Martello's "gross act of insubordination" and
"ultimatum" are predicated on Thomas Genuardi's
discredited version of what transpired and are ut-
terly without factual foundation. As found, Jane
merely asked Genuardi to explain what he meant
by his statement, "You are discharged for two
weeks." Having "never heard of anybody being
fired for two weeks," she asked, "Tom, what does
this mean? Am I fired or not?" I perceive nothing
"insubordinate" and certainly nothing in the nature
of an "ultimatum" nor even refusal to accept
disciplinary action in Martello's words. Nor is it
claimed that Martello retorted in any angry or
disrespectful tone . This is true even though it be ar-
gued that to the average person Genuardi's state-
ment could have had only one meaning, namely,
that Genuardi was meting out a 2-week suspension
and no final discharge. Jane was a very young, obvi-
ously inexperienced girl. I am convinced that her
question was sincere and not disrespectful and that
Genuardi well knew it to be such and that he in fact
did not take her retort as an act of disrespect, ar-
rogance, or insubordination. On the record as a
whole, I am persuaded that Genuardi seized upon
the incident as a pretext to rid himself of an ardent
union advocate and worker to discourage and stifle
union activity in his stores. I am fortified in my con-
" Morgan signed a card for the Union on May 17 or 18 but soon
thereafter became disenchanted with it She discussed her antiunion views
with employees and with her "boss ," bookkeeper'Stover , and helped form
the "Help Genuardi Committee "
GENUARDI SUPER MARKETS, INC. 1369
clusion by the insubstantiality and spurious
character of some of the many complaints relied on
by Respondent to support its claim that Martello
was an undesirable and troublesome worker. Ad-
mittedly, all of her alleged derelictions came to
light since advent of the Union in May. Admittedly,
also, but for these Martello would not have been
discharged nor even temporarily suspended. I now
turn to those alleged shortcomings.
(2) Respondent contends (brief, p. 41) that
Martello engaged in "blatant acts of interference
with other employees, insubordination and
deliberate breach of company policy" in the last of
her 36 months of employment. To support this
claim it adduced the testimony of Frank Genuardi
and Swede Square Manager Scottie and Grocery
Manager Snyder, to show (a) that Martello inter-
fered with the work of employees in Swede Square
by lengthy conversations, and (b) that, contrary to
company rules, she looked through timecards of
employees of that store.
(i) Although Frank Genuardi testified that he
had made "frequent trips" to the store, he admitted
that he saw Martello there on only "two occa-
sions ." According to Genuardi, in early June he
"reprimanded her for holding up one of my em-
ployees" at work for 10 to 15 minutes, stating that
he "purposely timed her."22 Genuardi testified that
he reprimanded her a second time when he saw her
pulling out two timecards; he did not, however, see
her make notations. Although Genuardi felt that
timecards "are rather sacred things," he admitted
that "there isn't any written rule" against looking at
them. He testified that he reported both incidents
to his brother, Thomas, who handled personnel.
(ii) Although testifying on direct examination
that Martello came to Swede Square on "quite a
few occasions" before her discharge and that only
Martello "made it a habit" to come to the store and
"interrupt the work of employees," Swede Square
Manager Scottie on cross-examination admitted
that he personally saw her there only "one time"
and then only to "pay a bill." He did state that he
received reports concerning her store visits from
Grocery Manager Snyder "two or three times," but
that as far as he knew Snyder reported only one in-
stance when Martello looked at cards. He himself
had reprimanded two other employees during a
lunch period when he suspected cheating on their
part by having one employee punch the card of
both; he admitted, however, that he had not re-
ported the incident to Thomas Genuardi. Contrary
to other company witnesses, Scottie stated that it
was necessary to remove a timecard from its slot to
determine whether an employee was or was not
working.
(iii) Grocery Manager Snyder testified that he
personally saw Martello in Swede Square three
times in June, once looking at timecards and twice
talking to others. He also heard from Meat
Manager Wilkinson about a fourth Martello visit.
According to Snyder, in her first visit Martello
looked at three or four timecards and then went to
the rear of the store. She took no notes, however.
Although he testified that he knew of no company
rule against employees looking at cards, he re-
ported the incident to both Store Manager Scottie
and Thomas Genuardi, the former because he was
"curious why" Martello would check timecards and
the latter because her action "seemed out of line."
He did not personally talk to her.
Snyder testified that the second occasion in-
volved Martello's speaking to employee King, a
grocery stockboy, in the back of the store.
Although the two allegedly conversed for 10 to 15
minutes, he did not recall saying anything to either.
Again he reported the incident to Scottie and
Genuardi. Snyder testified that about a week later,
he again saw Martello speaking to five stockboys,
including King, for 8 to 10 minutes. He "walked
through their midst" but said nothing to them "im-
mediately." The group broke up when he asked it
to return to work. Although he observed King in
conversation during working hours twice within a
week, no disciplinary action was taken against him
(although Snyder did tell him to stop talking). Once
again Snyder made his report on Jane to Scottie
and Thomas Genuardi.23
Finally, Snyder testified that on another occasion
Meat Department Manager Wilkinson informed
him that Martello was in the store "engaged in con-
versation again in the back." According to Snyder,
when he went to look for Martello, she was gone,
Frank Genuardi having told her to leave the store.
Snyder again reported the incident to Scottie and
Thomas Genuardi even though he had no first-hand
knowledge of her presence.
(3) Jane Martello admitted visiting employees in
Swede Square on three or four occasions in June,
explaining that she knows "most of them" since she
had worked there before and that she sometimes
still shops there. Thus, she admitted that she had
talked to one employee (Cook) in the backroom
for about 10 minutes to apprise him of a union
meeting in her home and, further, that Genuardi
had reprimanded or asked her to leave; however,
she denied being reprimanded by Frank Genuardi
for looking at timecards. She similarly denied being
" Asked on cross-examination why he decided to time the conversation,
Genuardi said , " I just wanted to see how long somebody could hold up
another employee before my temper cut short, and I just terminated it." He
further stated he did not speak to her immediately because " I don't think
it's my makeup to go up and chase them out immediately "
" Subsequent to the close of the hearing , Respondent moved to reopen
the record to call King to corroborate Snyder 's testimony. On January 17,
1968, 1 denied Respondent 's motion since Respondent had made no show-
ing that the proffered evidence could not have been adduced prior to close
of the hearing . In his testimony , Snyder specifically named King as one of
the employees involved in the conversations and King 's affidavit, attached
to the motion , establishes that King was in Respondent 's employ at the time
of the hearing. King was, therefore , presumably available to testify In its
motion , Respondent did not claim otherwise Cf. Crew Builders Supply Co ,
154 NLRB 1747, fn 1; Metal Blast, Inc v. N L.R.B , 324 F.2d 602, 604
(C.A 2)
354-126 O-LT - 73 - pt. 2 - 15
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimanded by Snyder for looking at cards or for
talking to employees while working and further de-
nied speaking to employee King or to groups of em-
ployees ( including King ) for as much as 10 to 15
minutes at a time . She described in detail the visits
she made for purposes such as shopping for a
Father 's Day cake , and for cigarettes , and for meet-
ing a friend for lunch ( including the trip to em-
ployee Scioli which led to her dismissal ), indicating
that of course she "wouldn't have just walked past"
acquaintances (including King) without saying
"hello," but added that as for talking to them "any
length of time , no, I did not."
Martello 's denials raise issues of credibility,
primarily between herself and Snyder. Insofar as
Frank Genuardi 's testimony is concerned , Martel-
lo's testimony as to one of the two incidents (her
conversation with Cook) is consistent with Genuar-
di's. Scottie 's testimony raises no substantial issue
since he testified to only one incident he personally
witnessed and this involved nothing more than a
visit to the store to pay a bill (no employee conver-
sations were claimed )-an obviously proper and
legitimate purpose . As between Snyder and Martel-
lo, I have no hesitation in crediting Martello whom
I have already characterized as an honest witness
whose testimony is worthy of belief. I also credit
her testimony in preference to that of Frank
Genuardi.
(4) Assuming , however , that all incidents
described by Snyder and Frank Genuardi actually
occurred, I am not persuaded that they truly
motivated Respondent 's decision to suspend and
then fire Jane Martello. The presence of valid
grounds for an employee 's suspension or discharge
does not legalize it where "other circumstances
reasonably indicate that the union activity weighed
more heavily in the decision to fire him ....
N.L.R.B. v. Whitin Machine Works, 205 F.2d 883,
885 (C.A. 1). Viewing the record as a whole and
bearing in mind that "[ h]uman qualities , such as
motive , can only be shown circumstantially where
the possessor has not previously revealed them
directly" (N.L.R.B. v. Tepper, 297 F.2d 280, 284
(C.A. 10), I find that the preponderance of
evidence and the reasonable inferences to be drawn
therefrom establish that Respondent 's conduct was
in fact motivated by its opposition to Martello's
union activities.
The record shows, as I have found (supra, D),
that Respondent 's supervisors and managerial offi-
cials resorted to acts of restraint and coercion to in-
duce employees to abandon the Retail Clerks and
to retain their support for the admittedly favored
Association . Jane Martello was a key employee in
the Union 's organizational drive, having (among
other things ) solicited employees in two stores
(Sandy Hill and Swede Square ) to align them with
the Union ( see, supra , E, 1). She was one of the
two employees who delivered to Association Pre-
sident Falco ( also a managerial representative) the
request of a group of employees to call a meeting to
discuss dissolving the Association . And she is the
daughter of Pauline Martello, another ardent union
advocate in whose home the Union conducted
meetings . Indeed , so close and complete was Jane's
identification with the Union that her store
manager ( Sandy Hill Manager Scottie ) suspected
even her friends and associates of prounionism.
Finally, not to be overlooked is the uncontradicted
testimony of a disenchanted former union em-
ployee ( Morgan ) that another managerial represen-
tative (Stover) had asked her if she were willing to
"frame Janie."
Viewing the incidents described by Frank
Genuardi and Snyder in the light of the whole
record , including Respondent 's antiunion opposi-
tion , it is difficult to believe that these incidents
would have prompted the 2-week disciplinary ac-
tion against Jane other than for her union advoca-
cy-even assuming, contrary to fact, that all in-
cidents occurred as alleged by Respondent's wit-
nesses. In all, five episodes are involved ( all within
a month)-two in which Jane allegedly looked at
timecards and three in which she conversed with
employees. As to the timecard episodes, Snyder
and Frank Genuardi admitted that there was no
rule concerning employees ' examination of them,
particularly for the purpose of checking whether an
employee was on duty-as was Jane 's purpose.24 As
to Jane's conversing with employees , there is no re-
liable evidence that Respondent has any rule re-
garding employee discussions in the stores, particu-
larly in nonpublic areas such as stockrooms where
Jane allegedly had them .25 Nor is there evidence
that Jane 's alleged conversations significantly inter-
fered with normal employee work in the
stockroom. The alacrity with which Snyder re-
ported Jane's store visits to Scottie and Thomas
Genuardi (her first as well as last visit and a visit
about which he knew only by hearsay) suggests that
he was bent upon building a record of misdeeds
against a hitherto satisfactory employee.
Noteworthy in this connection is Scottie's
testimony that he had not reported two other em-
ployees whom he had suspected of conduct
patently more serious than Jane 's; i.e., punching
cards of other employees.
On the basis of the entire record, therefore, I find
and conclude that the reasons advanced by Respon-
dent for its decision to mete out a 2-week discipli-
nary suspension to Jane Martello, as well as the
reason for her subsequent discharge ( the June 26
incident in which Jane questioned Thomas Genuar-
di's 2-week suspension (supra, E, 1, b)), are mere
pretexts to cloak the true motive for its actions,
r' Several employee witnesses testified to the same effect I do not credit
Tom Genuardi's contradictory testimony that "Everyone [was] informed
that the timecards are off-limits
°6 Snyder and others testified that occasional conversations were
tolerated and were not unusual Although Snyder claimed that he had
"probably" reported discussions by and among other employees in the
past , he was vague on this subject and could not recall any specific
instances.
GENUARDI SUPER MARKETS, INC. 1371
namely, to rid itself of a key union adherent. It fol-
lows, therefore, and I find, that Respondent by its
conduct violated Section 8(a)(3) and (1) of the
Act.
2. William Hartsell, Jr.
a. Hartsell's employment and union activity
Hartsell, an 18-year-old schoolboy, worked as a
part-time clerk in Sandy Hill for 2 years until
discharged on May 18, 1967. His duties included
opening cartons of merchandise in the basement,
stamping prices on boxes, and stocking shelves. Ac-
cording to James Genuardi (vice president in
charge of grocery operations), Hartsell, one of
Respondent's senior part-time employees, as well as
full-time employees, opened and priced merchan-
dise.
Hartsell signed an authorization card at the
Union's first organizational meeting held in his
home on May 17. After that meeting he solicited
union card signatures "just about every day." On
the night of May 18, he solicited employees, who
missed the May 17 meeting, to attend another one
in his home. For at least a week previously, he
polled employees to determine whether they wished
to unionize the store.26
b. The May 11-16 incidents
On Thursday evening , May 11, James Genuardi
made one of his customary visits to Sandy Hill,
where he learned that Hartsell had cut and
damaged 12 boxes of soap powder.27 Genuardi told
Hartsell, "Well, I'm tired of of warning you. I told
you enough times ... Now you're buying them and
I hope your mother likes the brands you have to
buy." Hartsell said, "All right," and Genuardi then
told Store Manager Von Rohr and Grocery
Manager Embly that he was "holding them respon-
sible to see that Bill [Hartsell] paid for these soap
powders ," directing them to give him a register
tape receipt when he did .211
Genuardi testified that although he "can un-
derstand" and has overlooked "a certain amount"
of damage in cutting cartons of soap powder (he
conceded that "everybody," including he, had
damaged merchandise), he considered the number
of boxes Hartsell had damaged as excessive and he
"became infuriated." He further stated that
although he had "many times" before found exces-
sive damage, he could "never ... pinpoint who did
it,"29 "everybody" disclaiming responsibility for the
damage.30 Genuardi would warn the men that any
person caught "cutting merchandise in excess
amounts ... would have to buy them." According
to Genuardi, Hartsell was "the first one the] caught
doing this," and, accordingly, required him to pay
for it.
Hartsell related the soap powder damage incident
to his father by telephone on the evening of May
11. His father told him not to pay for the damaged
merchandise until he obtained more information.
Hartsell, Sr., then talked to Retail Clerks Represen-
tative Godwin who advised him "to offer to pay for
it." The following Tuesday (May 16), near 9 p.m.
closing time, Hartsell, Sr., went to the store and in
the presence of several employees told Store
Manager Von Rohr that he wanted to pay for the
damaged soap powder, insisting, however, on an
itemized receipt for such payment. When Von Rohr
said that he "had nothing to do with it [and] that
he would have to see Jim Genuardi," Hartsell, Sr.,
answered that "he was the store manager and he
should be able to handle the case."31 Von Rohr
then agreed to give Hartsell "a tape receipt from
the register" which Hartsell refused to accept
"because it didn't prove that he paid for each item."
Hartsell offered to pay for the merchandise a
second time , again demanding an itemized receipt,
but Von Rohr again rejected the offer. Later that
night, Von Rohr reported the incident to James
Genuardi by telephone.32
38 At the outset of his testimony , Hartsell stated that he "had not taken
part in any activity on behalf of the Union " prior to May 18 Asked on
cross-examination to explain a statement in his May 20 prehearing affidavit
that " for about 2 weeks" before May 18 he "had gone around personally"
to ask employees "what their thoughts were about joining the Union,"
Hartsell explained that "we didn 't discuss it [the Union ] in any way" before
May 17, but that prior to that date he polled employees on the question
whether they "wanted a union ," since a new manager ( Von Rohr ) who had
just taken over the store " started changing everything " Employee Morgan
corroborated Hartsell 's testimony in this respect She testified , without
contradiction , that "the Saturday before May 17 . [Hartsell] had a plain
white card and he was asking different ones if they would be interested in
having a union."
3r The 12 boxes came out of at least 20 large cartons (Tide , Ajax, Snowy
Bleach , Spic-and-Span , etc ), each carton containing 10 to 36 boxes, de-
pending on size A cutter is expected to cut open a carton ( with a razor or
knife ) on an indicated line across the top or other area on the carton Hart-
sell apparently cut the cartons too low . According to Genuardi, such
damaged boxes, patched with Scotch tape , are almost impossible to sell.
48 The above findings are based on the credited testimony of James
Genuardi , an essentially credible witness. Hartsell apparently sought to
minimize the extent of the damage. Thus, at one point he testified that he
"can't recall" how many boxes he had cut improperly and at another that
he could not "recall cutting any " In his May 20 prehearing affidavit,
Hartsell admitted that he had "accidentally cut open " some boxes
^ As previously noted, full timers as well as some part timers did this
type of work
3° Nonetheless , Genuardi claimed that Hartsell " was constantly being
caught cutting packages ," although he " wouldn't say in excess " Genuardi
also complained against Hartsell 's "attitude when we tried to teach him
how to do things" and also against his "arrogance " in trying to pick his own
jobs According to Genuardi , he had once recommended to his brother
Thomas (who was in charge of personnel ) to "fire" Hartsell, but the then
manager ( Jacob Genuardi ) convinced them not to do so because they had
been "short of help " Yet, James Genuardi also testified that Hartsell was
"a fairly good worker "
3' The amount involved was $6 30
3' The findings in the above paragraph are based on the composite,
credited testimony of employees Dorothy Hartsell ( Hartsell, Jr 's mother)
and Anderson Neither Von Rohr nor Hartsell , Sr , testified in this proceed-
ing. Hartsell , Jr., was not present , not having worked that day Von Rohr's
report to Genuardi , as testified to by the latter , is substantially consistent
with Mrs Hartsell 's testimony I do not credit Anderson 's testimony at one
point that in offering payment, Hartsell , Sr , stated he did so because his
son "was threatened for dismissal if he didn't pay the bill " As hereafter
noted , Anderson was a witness prone to exaggerate and to dramatize
events Furthermore, at a later point he in effect confessed that the dismis-
sal threat was not made and that he only inferred it, since "we figured that
since we were just starting out in an effort to unionize the store, that he
[Hartsell , Jr ] was marked to go, I thought "
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The May 18 discharge
As previously noted (A), the Retail Clerks held
its first organizational meeting in Hartsell's home
on May 17. Embly, grocery manager at Sandy Hill,
was among those present.
Around 5 p.m. on the next day (May 18), Wil-
liam Hartsell, Jr., went to the store and discovered
that his weekly hours had been reduced from 22 to
6. Taking along his brother Robert (who also
worked in the store) and another employee, he
went to Von Rohr and asked why his hours were
cut. Von Rohr said because he was "going to make
him a bagger," since Hartsell "didn't want the
responsibility of working in the basement" cutting
cartons, a charge Hartsell denied.33
Hartsell left the store and telephoned his father
and Union Representative Godwin. Following God-
win's advice, Hartsell went back to the store and
told Von Rohr that he would be unable to work
that night since he was going to see his union
representative that evening, displaying his union
card. Von Rohr became "upset," said that he
"didn't want any trouble," and told Hartsell to leave
the store.3't According to the uncontradicted,
credited testimony of Pauline Martello, as Von
Rohr turned away from Hartsell and walked toward
the office, he said, "you think you're awfully smart
holding that Union meeting last night. We know
who's there and who's causing all the trouble." Von
Rohr then picked up the telephone and talked to
Thomas Genuardi, telling him , "you'd better get
down here. Billy's flashing a Union card and caus-
ing trouble."
Shortly after 6 p.m. that day (May 18), Hartsell
returned to the store to pick up his mother. Von
Rohr approached him and told him "to leave, that
he didn't want [Hartsell] to cause any trouble."
Thomas Genuardi, who by that time got to the
store, went to Hartsell and said that he wanted to
see him outside. Outside the store, Thomas Genuar-
di said, "You know you've been fired." When Hart-
sell asked him the reason, explaining that "no one
ever said this to me before," Genuardi said that he
"was trying to make a fool out of him," adding that
he was "fired" because he was "careless." Hartsell
remonstrated that Von Rohr had only told him that
he "had to pay" for the damaged soap powder, that
Von Rohr refused the offer "to pay for it," and that
he "couldn't fire [him] because of that." Genuardi
"just told [him] he didn't want to see [him] in the
store any more."'
On Saturday, May 20, when Hartsell went to the
store to buy doughnuts, Donna Morgan (a courtesy
girl) motioned him over to the office. Von Rohr
came up to him, shoved him, and told him to leave
the store, stating that he was "a troublemaker and a
nuisance" and if he were Hartsell's age, he would
"beat the s- out of [him]."36
d. Conclusions
As found, on May 11, while opening cartons of
soap powder, Hartsell damaged 12 boxes. Hartsell's
father agreed to pay for the $6.30 damage, pro-
vided he was given an itemized receipt. Store
Manager Von Rohr insisted on giving him only a re-
gistered tape receipt. On May 17, Hartsell attended
a union meeting in his home and signed a card. The
next day, May 18, Hartsell learned that Respondent
cut his working hours from 22 to 6 per week. Hart-
sell told Von Rohr that he would see his union
representative, displaying his union card. Upset by
this, Von Rohr told Hartsell that he "didn't want
any trouble" and remarked, "you think you're aw-
fully smart holding that Union meeting last night.
We know who's there and who's causing all the
trouble." He then told Thomas Genuardi he had
"better get down here. Billy's flashing a Union card
and causing trouble." Later that evening, Thomas
Genuardi fired Hartsell.
As previously stated in connection with the
discharge of Jane Martello (supra, E, 1, c), the
mere fact that an employer had ample reasons for
discharging an employee does not immunize the
discharge. "To invoke [Section] 8(a)(3), the anti-
union motive need not be dominant (i.e., larger in
size than other motives); in some cases it may be so
small as the last straw which breaks the camel's
back." N.L.R.B. v. Whitfield Pickle Company, 374
F.2d 576, 582 (C.A. 5). "The concurrent existence
of an otherwise valid reason for the discharge of an
Based on the testimony of Hartsell , Jr , corroborated by Dorothy Hart-
sell, who overheard the conversation As previously noted , Von Rohr did
not testify James Genuardi testified that he and his brother Thomas de-
cided to reduce Hartsell 's hours after receiving a report from Von Rohr to
the effect that Hartsell , Jr , had told Von Rohr that " his [young Hartsell's]
father said that if he has to be responsible for damaged merchandise he is
not to work on the [ cutting and pricing] table " According to Genuardi, he
already had sufficient baggers and he could give Hartsell only a few hours
of bagging work. At one point he implied that the bagging assignment was
only "for that particular week ," but if it was so intended , this was not com-
municated to Hartsell Although Von Rohr's report to Genuardi was ad-
mitted as a communication in the usual course of business , it is to be noted
that Von Rohr was not produced to testify and to be cross-examined
thereon . Respondent did not explain its failure to call him . See infra, In 37
" Based on the credited testimony of Hartsell , Jr , in part corroborated
by Jane Martello who heard a portion of the conversation Thomas
Genuardi testified that Von Rohr telephoned him after the incident , report-
ing that " Bill was causing quite a bit of commotion," but that Von Rohr
said "nothing at all" about the Union ( As noted , Von Rohr did not testify )
" Based on the credited testimony of Hartsell , Jr Thomas Genuardi
testified that after arriving at the store subsequent to his telephone talk
with Von Rohr (supra ), the latter told him, "Get that guy off my back He is
bothering me something awful" and "bothering everybody" in the store,
that outside the store he told Hartsell that he was "quite furious about all
the happenings" Von Rohr had reported to him , including his " insubor-
dination " in refusing to leave the store when Von Rohr asked him to do so,
and that before he "could even finish," Hartsell interrupted , saying, "I
wasn 't going to take any crap from that no good so and so Frank Von
Rohr "Genuardi testified , "And of course , this guy here who [sic ] was in-
subordinating orders from the store manager, I got very mad about the
whole thing too, so I said , 'Bill, you don't want to work for us You are
finished "' I do not credit Thomas Genuardi's version of the discharge con-
versation nor his testimony concerning the report Von Rohr gave him I
have already commented upon his unreliability as a witness Von Rohr was
not called to corroborate any of Genuardi 's testimony
"Based on the credited , mutually corroborative testimony of Hartsell,
Jr ,and Morgan
GENUARDI SUPER MARKETS, INC. 1373
employee does not preclude a factual determina-
tion that his discharge was discriminatory if it ap-
pears from a preponderance of evidence, and the
reasonable inferences drawn therefrom, that the
discharge was in fact motivated by the employer's
opposition to the employee's union activities."
N.L.R.B. v. Buitoni Foods Corp., 298 F.2d 169, 174
(C.A. 3).
Although, as found, Hartsell was derelict in per-
formance of his duties on May 11 when he
damaged some boxes, and although he and his
father may have been unreasonable in insisting on
an itemized receipt on paying for the boxes, the
totality of the evidence persuades me that this con-
duct (and other acts relied on to which reference
will hereafter be made) did not motivate Hartsell's
discharge.
I have already referred to Respondent's hostility
toward the Union and its coercive attempts to in-
sure that it would not supplant the company-con-
trolled Association. That Respondent knew that
Hartsell had aligned himself with the Union is
established by the fact that one of its supervisors
(Grocery Department Manager Embly) attended
the May 17 organizational meeting in Hartsell's
home where Hartsell signed a union card, by Hart-
sell's display of his card to Store Manager Von
Rohr the next evening, and by the latter's remark,
"you think you're awfully smart holding that Union
meeting last night." Moreover, I am not persuaded
that Respondent was as seriously concerned about
the May 11 soap powder damage as was portrayed
by it at the hearing. To begin with, the 12 boxes
came out of at least 20 large cartons, each contain-
ing 10 to 36 boxes, and had a retail sale value of
only $6.30. Furthermore, the record indicates that
the damaging of merchandise in cutting cartons of
soap powder was a common and not unexpected
occurrence.
Nor did Thomas Genuardi give Hartsell's damag-
ing of boxes as a reason for the discharge when he
enumerated the reasons for his action at the outset
of the hearing as General Counsel's witness. Ac-
cording to Genuardi, Hartsell was discharged for
"insubordination to the store manager, provoking
girls at the check-out counter," and "rude[ly]"
telling Genuardi that "he wasn't going to take any
crap from a no-good so and so store manager." I
have already discredited Thomas Genuardi's
testimony that Hartsell had made the alleged vile
reference to Von Rohr. As to Hartsell's alleged in-
subordination to the manager and his provoking of
the help, there is no direct evidence to support
them, the accusations being based only on alleged
reports from Von Rohr. As previously pointed out
(supra, fn. 33), it is significant that Von Rohr was
not produced as a witness to give a first-hand ac-
count of the alleged incidents of insubordination
and to subject himself to cross-examination upon
any of them.37 Furthermore, even if it is assumed
that Respondent acted on the basis of Von Rohr's
report, it is clear, and I find, that Von Rohr was dis-
criminatorily motivated in reporting that Hartsell
was insubordinate and that he provoked the
checkout girls. Von Rohr clearly disclosed his
union animus in reacting to "Billy's flashing a union
card" by directing Hartsell to leave the store im-
mediately, by commenting that he was "awfully
smart" for attending the union meeting the previ-
ous evening, and by calling upon Thomas Genuardi
to get to the store at once because Hartsell was
"causing trouble." It is plain that Von Rohr equated
"trouble" with union activity; and that his report
that Hartsell was "insubordinate" and unruly had a
direct connection with Hartsell's union activity.
Thus, even assuming that, in his report to Respon-
dent, Von Rohr said nothing about Hartsell's union
activities and, further, that Thomas Genuardi, who
discharged Hartsell, knew nothing of Von Rohr's il-
legal motivation, the discharge is nonetheless un-
lawful. See Allegheny Pepsi-Cola Bottling Company
v. N.L.R.B., 312 F.2d 529, 531 (C.A. 3), where the
court in a comparable situation stated:
Petitioner [the company] urges that because
the Board concluded that [Company Pre-
sident] Lapidus himself was not so [discrimina-
torily] motivated in ordering the discharge ...
the [Section] 8(a)(3) charge should have been
dismissed. This argument does not withstand
analysis. ... There is no question but that it
[the report] was the cause of Dommel's
discharge. That being so, the only issue was
whether Sears [the supervisor] was discrimina-
torily motivated in making the report. ... In
this regard it need only be said that the
findings of the trial examiner amply support
the conclusion that there was such motivation.
To rule otherwise would provide a simple
means for evading the Act by a division of cor-
porate personnel functions.
In addition, James Genuardi attempted to depict
Hartsell as an "arrogant" employee and claimed
that Hartsell was "constantly" caught damaging
merchandise (supra, fn. 30). Although I have found
James Genuardi to be an essentially credible wit-
ness and have credited his testimony in preference
to that of General Counsel's witnesses in other in-
stances, I find that his testimony on this aspect of
the case was vague, colored, and unsupported.
Furthermore, if Hartsell was in fact as undersirable
as alleged, it is strange that no disciplinary action of
any kind was taken against him until after advent of
the Union. Under the circumstances, I infer that
Respondent's hostility toward Hartsell was
generated not by Hartsell's past work derelictions,
but by his association with and support of the
Union.
ar It is well recognized that failure to adduce evidence or produce wit-
nesses within a party's control warrants the inference that , if adduced, the
evidence or testimony would not have been favorable N L R.B v. Wallick
& Schwalm Company, 198 F.2d 477, 582 (C A 3); N L R B v. Kaloff Pulp
& Paper Corporation, 290 F 2d 447, 451 (C A 9) See also Interstate Cir-
cuit , Inc v U S., 306 U S 208, 225-226
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the entire record, therefore, I find
and conclude that the reasons Respondent ad-
vanced for its termination of Hartsell, as well as
those for Jane Martello's discharge (supra, E, 1),
are pretextual. I find that there was more than a
coincidental connection between Hartsell's at-
tendance at a union meeting on one night (May 17)
and his discharge the next (May 18), just after
seeking union assistance in resisting Respondent's
drastic reduction of his working hours.
F. Other Alleged Discriminatory Acts in Violation of
Section 8(a)(3) and (1)
1. James Anderson's work schedule change
Anderson has been a regular part-time employee
at Sandy Hill for 9 years, working full-time all those
years for another employer (Thriftway Foods). He
signed a union card and was one of the two em-
ployees who presented the employee petition to call
an Association meeting to discuss dissolution of the
Association.
For several years prior to September 1967, An-
derson had worked on three weekday evenings
(Monday, Tuesday, and Wednesday) and all day
Saturday. In late August or early September, his
schedule was changed to work five evenings with
Saturday off. Protesting the change, he told Store
Manager Von Rohr, "the schedule-it stinks-and I
am not able to come into 'the store every damn
evening of the week as I also have a job all day, and
I am not a machine, I have to get some time off in a
week." Von Rohr told him on this and on another
occasion when Anderson again complained, that he
was not "interested" in Anderson's unique situa-
tion, that he wanted him to work the new hours,
and that unless he did so he would be replaced. An-
derson also discussed his "problem" with Joseph
Genuardi who assured him that the changed
schedule was "only a temporary arrangement" dic-
tated by a shortage of help. Anderson's schedule
was changed after about a month to eliminate Wed-
nesday night work; he was still not permitted to
work on Saturdays.38
James Genuardi testified that it was the Com-
pany's customary practice to change existing
schedules in early September each year in order to
help alleviate the problem caused by students
returning to school and that the situation was par-
ticularly acute in 1967 because of the "critical,
short" labor supply. Genuardi named other part
timers whose schedules were changed at the
request of students or parents, and stated that no
part timers, other than school help, were given
Saturday work after September.
I credit James Genuardi's testimony as to the
reasons for the change in Anderson's work
schedule and, based thereon, I find that the change
was motivated by business, not discriminatory, con-
siderations. As previously stated, James Genuardi
impressed me as an essentially credible witness. An-
derson, on the other hand, was prone to exaggerate
and hastily to impugn Respondent's motivation in
his, as well as fellow employee Hartsell's, case
(supra, fn. 32). A finding of discrimination must
"rest[s] upon the motive of the employer ... not
upon what it appears to have been either to the vic-
tim or the Union." N.L.R.B. v. Dalton Brick & Tile
Corp., 301 F.2d 886, 897 (C.A. 5).
To be sure, some of the factors heretofore
referred to in indicating discrimination in the
discharges of Jane Martello and William Hartsell,
Jr. (i.e., company antiunion bias and union ad-
herence by the alleged discriminatee), are also
present in Anderson's case. Furthermore, there is
evidence that Anderson's schedule was never
changed prior to 1967 to coincide with the
beginning of the school semester.39 It is my view,
however, that the credited countervailing evidence
adduced by Respondent satisfactorily rebuts a
prima facie showing of discrimination. Furthermore,
there is some significance in the circumstances that
the alleged discriminatory action against Anderson
(in the fall of 1967) was taken apparently long after
active organizational activity subsided;40 that
Respondent retained him for years although it ap-
parently knew that as a full-time Thriftway Foods
employee he was a member of a (Teamsters) union
(James Genuardi indicated that Anderson had cer-
tain specialized experience of value to Respon-
dent); and that it did not terminate him even
though after the first week of the new work
schedule, in Anderson's own words. "I started to
miss a damn evening a week" because of overtime
work at Thriftway's.
I conclude that the change in Anderson's work
schedule was not violative of Section 8(a)(3) and
(1) of the Act.
2. Dorothy Hartsell's work schedule change
Dorothy Hartsell, mother of William Hartsell, Jr.
(supra, E, 2), and a full-time checker (or cashier)
in Sandy Hill, has worked for Respondent since
1962. She signed a card at the May 17 union meet-
ing held in her home and also the June 20 petition
to the Association to call a meeting to discuss its
dissolution or merger with the Retail Clerks.
Prior to June, Hartsell regularly worked 4 week-
days (9 a.m. to 6 p.m.) and one night (Wednesday,
12 to 9 p.m.)-never on Friday night and only oc-
'° The findings in the above paragraph are based on the uncontradicted
credited testimony of Anderson
" Anderson also testified that sometime in June he was assigned menial
tasks, such as removing and stacking goods and scrubbing shelves Ander-
son admitted , however , that the work was necessitated by a remodeling of
the store-a "unique " situation , that it lasted only a brief period, and that
some of the assigned tasks ( other than scrubbing ) were usual and ordinary.
Furthermore , the complaint did not allege the nature of Anderson's work
to be a violation of the Act
'0 The record does not show any active organizational activity after the
Union 's June 20 meeting , Jane Martello's discharge , however, came within
a week of that meeting
GENUARDI SUPER MARKETS, INC. 1375
casionally on Saturdays. In June, her schedule was
changed so that she was required to work days,
Monday through Thursday, and Friday night (12 to
10 p.m.). Hartsell objected to the new schedule
because it conflicted with her church activities, ex-
plaining that she was "the Treasurer of my class,
which meets the second Friday of each month."
She admitted that the Genuardis were not "aware
of this fact" until she "went to the Association." At
Hartsell's behest, Association President Falco ar-
ranged a meeting to discuss the matter with Store
Manager Von Rohr. Von Rohr told her that if she
could not work Friday nights she would have to
work on Saturdays, but Hartsell stated that she
could not work on those days either because she
"could not keep up a house and work on Saturdays
too." Von Rohr then said that he "would discuss
the matter with Mr. Tom Genuardi," but Hartsell
heard nothing further on the subject.''
James Genuardi testified that Respondent com-
menced rescheduling the hours of full-time
checkers in June on learning for the first time that
state law prohibited working part-time girls under
age 18 after 9 p.m.; that in addition to Hartsell, two
of Respondent's three other full-time checkers were
scheduled to work and worked Friday nights (when
the store remained open until 10 p.m.);' that Hart-
sell was offered an opportunity to work Saturday in
place of Friday night, as was its fourth checker
(Young) who availed herself of that opportunity;43
and that Hartsell is still at liberty to take off Friday
evenings (Genuardi indicated he now has a replace-
ment for her), although she would "likely" have to
work on Saturday.
As in the case of Anderson, I credit James
Genuardi's testimony and find that Respondent's
rescheduling of Hartsell's working hours-a mere
substitution of Friday evening for Wednesday even-
ing work-was motivated by nondiscriminatory
considerations. I conclude that Respondent's con-
duct was not violative of Section 8(a)(3) and (1) of
the Act.
3. Pauline Martello's transfer
Pauline Martello, Jane Martello's mother (supra,
E, 1), has worked for Respondent as a full-time
"courtesy girl" for approximately 9 years, all of it in
Sandy Hill until her transfer to Jeffersonville in
September 1967. As courtesy girl, she was responsi-
ble (among other things) for balancing cash
receipts and reconciling accounts receivable. As al-
ready noted, she was an active union adherent, hav-
ing hosted union meetings in her home and having
signed the June 20 petition calling for a meeting to
discuss dissolution of the Association. As also noted
(supra, D, 1, a and b), in May, and again in June or
July, Association (and Company) Officials Chase
and Falco unsuccessfully sought to induce her to
resign her position as secretary-treasurer of the As-
sociation.
In early September, Thomas Genuardi advised
Martello that she was being transferred to Jeffer-
sonville . Martello said nothing, but, as she testified,
was "a little pleased" since she was "glad to get
away" from Sandy Hill Store Manager Von Rohr
with whom she did not "get along ." Prior to the
transfer, however, she told her superior, Book-
keeper Stover (a managerial official, supra, B), that
the 8 a.m. starting time at Jeffersonville (she
started at 8:30 a.m. at Sandy Hill) "would be very
difficult" for her because she "would have to leave
[her] little girl home for an extra half an hour by
herself" before boarding her 8:30 a.m. schoolbus.
Martello also referred to the problem of getting her
blind husband to a bus stop before her leaving for
work, explaining that her husband did not start
work until 9 a.m. However, Jeffersonville Store
Manager Vernacchio advised Martello that "it was
all right for [her] to come in at 8:30," a half hour
later than the other Jeffersonville courtesy girls,
although he "would appreciate it if [she] got there
as early as [she] could."'"
Thomas Genuardi testified that Martello was
transferred to Jeffersonville because he knew that
she "wasn 't too happy with Mr. Von Rohr" and
because "by having this change " he hoped "to cor-
rect" a "number of shortages and overages" in cash
accounts in the Sandy Hill and Jeffersonville stores.
He also testified that it was "common practice" for
Respondent to transfer courtesy girls from one
store to another , stating that although some trans-
fers are made on a voluntary basis, others are not.
He further testified that Martello's September
transfer from Sandy Hill to Jeffersonville neces-
sitated and was followed by reassignments and
transfers of two other courtesy girls; i.e., employee
Showalter from Jeffersonville to Audubon and em-
ployee Fazio from Audubon to Sandy Hill.
I credit Thomas Genuardi's testimony as to the
reasons for transferring Martello, and find that the
transfer was motivated by business and personnel,
not antiunion, considerations. Genuardi's testimony
is corroborated by company records demonstrating
that interstore transfers were not unusual . Further-
more, Martello, in her typical frank and forthright
41 The foregoing findings are based on the uncontradicted , credited
testimony of Mrs Hartsell.
4i Genuardi testified , however, that these two checkers ceased working
Friday nights in October-one (Helemak ) because she worked Tuesday
nights checking and marking price changes, and the other (Genther)
because of hardship in getting home ( a considerable distance from the
store since she moved out of the store area ) during late hours Hartsell
resides only one block away from the store
43 According to Genuardi , " it's always been Company policy that if they
work Friday evening , they do not work Saturday , and if they work Satur-
day, they do not work Friday evening "
" The findings in the above paragraph are based on Martello 's credited
testimony Martello also indicated that working at Jeffersonville was "less
convenient" than at Sandy Hill because although her hours were the same
as before (9 30 a in . to 5 30 p in ), she has to cut her 1-hour lunch period
at Jeffersonville to a half hour to enable a part timer (who takes over after
she leaves) to start at 5 p .m and thus enable the part timer to put in 4
ihours' work (5 to 9 p in ) She admitted , however, that there was nothing
to preclude her from staying until 5 30 p .m and that it was only " the morn-
ing [that] creates a problem not in the afternoon "
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner ( supra, D, 1), admitted that the grounds
advanced by Genuardi for her transfer ( that she
was not happy with Sandy Hill Store Manager Von
Rohr and that there were "shortages and overages"
in the store ) did indeed exist and were not con-
trived . Martello also admitted that she performed
"basically the same" duties in both stores; that she
could work the same hours in both ; that although
she lived further away from Jeffersonville than from
Sandy Hill, she drove to both places ; and that the
Jeffersonville manager met her basic objection to
the transfer ( the 8 a . m. starting time ) by changing
her hours to conform to her former hours at Sandy
Hill. Under all the circumstances , I cannot accept
General Counsel 's contention that it was Respon-
dent 's desire to remove Martello-an ardent
unionist-from circulation among Sandy Hill union
employees which motivated its decision to relocate
her. Although the transfer undoubtedly caused per-
sonal and family inconvenience to Martello and
although it may have operated to dampen union ac-
tivity in Sandy Hill, I am persuaded that the transfer
constituted legitimate exercise of a managerial right
to assign an employee to a position deemed most
expedient in the exercise of managerial discretion.
I conclude that the transfer of Martello to Jeffer-
sonville was not discriminatory , in violation of Sec-
tion 8 ( a)(3) and ( 1) of the Act.
CONCLUSIONS OF LAW
1. Genuardi 's Employees Association at all
material times has been and is a labor organization
within the meaning of Section 2(5) of the Act.
2. By dominating , assisting , supporting , and in-
terfering with the administration of said Associa-
tion , Respondent has violated Section 8 ( a)(2) of
the Act.
3. By discharging William Hartsell, Jr., on May
18, 1967, and Jane Martello on June 26, 1967, and
thereafter failing or refusing to reinstate them, in
order to discourage union activities, Respondent
has discriminated in regard to hire and tenure of
their employment , in violation of Section 8(a)(3)
of the Act.
4. By the foregoing conduct and by coercively
questioning employees concerning their union sym-
pathies and activities, by inducing employees to
abandon the Union , by creating the impression of
surveillance of union activities , and by coercively
polling employees as to their union sentiments,
Respondent has interfered with , restrained, and
coerced its employees in the exercise of their Sec-
tion 7 rights and has thereby engaged in unfair
labor practices , in violation of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
6. Respondent has not violated Section 8(a)(3)
and (1) of the Act by changing the work schedules
of employees James Anderson and Dorothy Hart-
sell; nor by transferring employee Pauline Martello
from one to another of its stores.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , it will be recom-
mended that it cease and desist therefrom and take
certain affirmative actions designed to effectuate
the policies of the Act.
The affirmative relief will include the usual
requirement , customarily entered upon findings of
employer domination of a labor organization, that
Respondent withdraw recognition from and
completely disestablish Genuardi 's Employees As-
sociation . Respondent shall also reimburse its em-
ployees for all dues and fees it checked off and
deducted on behalf of and paid to the dominated
and assisted Association since January 14, 1967
(the beginning of the 6-month limitation period),
together with interest thereon , in the manner
presecribed in Salmirs Oil Company , 139 NLRB 25,
27. See Virginia Electric and Power Company v.
N.L.R.B., 319 U.S . 553, 540 ; Paul M. O'Neill In-
ternational Detective Agency, Inc. v . N.L.R.B., 280
F.2d 936 , 947-948 (C.A. 3); N.L.R.B. v . Getlan
Iron Works , Inc., 377 F.2d 894 , 897 (C.A. 2).
The affirmative relief will also include the custo-
mary provision that Respondent offer to the two
employees discriminated against ( William Hartsell,
Jr., and Jane Martello ) immediate and full rein-
statement to their former or substantially
equivalent positions , without prejudice to their
seniority and other rights and privileges, and to
make them whole for any loss of earnings they may
have suffered by reason thereof , by payment to
each of them of a sum of money equal to that
which each normally would have earned as wages
from the date of such unlawful discharge to the
date of Respondent 's offer to reinstate them,
together with interest thereon , less net earnings if
any during such period, backpay and interest to be
computed in the manner prescribed in F.W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Because the unfair labor practices committed are
of a character striking at the roots of employees'
rights safeguarded by the Act , it will also be recom-
mended that Respondent be required to cease and
desist from interfering in any manner with the
rights of employees guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record,
and pursuant to Section 10(c) of the Act, I hereby
make the following:
"Nothing in the order , however , should be construed as requiring
Respondent to vary existing terms and conditions of employment
GENUARDI SUPER MARKETS , INC. 1377
RECOMMENDED ORDER
Genuardi Super Markets, Inc., Sandy Hill Mar-
ket, Inc ., Genuardi 's Norriton Market , Inc., and
Genuardi's Audubon Market, Inc., and each of
their respective officers , agents , successors , and as-
signs, shall:
1. Cease and desist from:
(a) Dominating , interfering with , and contribut-
ing assistance and support to Genuardi 's Employees
Association, or any successor thereto, or any other
labor organization of their employees.
(b) Recognizing or negotiating with Genuardi's
Employees Association, or any successor thereto,
as the representative of their employees.
(c) Giving effect to any contract with Genuardi's
Employees Association, provided that nothing
herein shall authorize Respondents to cancel or
withdraw any benefit thereunder.
(d) Discouraging membership and activities in
Retail Clerks Union Local 1357, affiliated with
Retail Clerks International Association, AFL-CIO,
by discriminating in regard to the hire and tenure of
employment of Respondents' employees or by dis-
criminating in any other manner in regard to any
other terms and conditions of their employment, in
order to discourage membership or activities
therein.
(e) Coercively questioning employees concern-
ing their union sympathies and activities, or polling
employees as to their union sentiments , inducing
employees to abandon their union, and creating the
impression of surveillance of union activities.
(f) Interfering in any other manner with,
restraining , or coercing any employee in the exer-
cise of his right to self-organization, to form, join,
or assist any labor organization ; to bargain collec-
tively through representatives of his own choosing;
to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protec-
tion; or to refrain from any and all such activities.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act.
(a) Withdraw and withhold recognition from
and completely disestablish Genuardi's Employees
Association as the representative of any of their
employees for the purpose of dealing with Respon-
dents concerning any term or condition of employ-
ment.
(b) Reimburse employees for all dues and fees
paid to Genuardi's Employees Association which
were withheld from their pay or otherwise paid on
their behalf by said Employer to that labor or-
ganization after January 14, 1967, in the manner
set forth in the section of this Decision entitled
"The Remedy."
(c) Offer William Hartsell, Jr., and Jane Martel-
lo immediate and full reinstatement to their former
or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may
have suffered as a result of their discharge, in the
manner set forth in "The Remedy" section herein.
(d) Notify the above-named employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(e) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze and com-
pute the amount of backpay due under the terms of
this Recommended Order.
(f) Post at each of their four stores in Nor-
ristown and Audubon, Pennsylvania, copies of the
attached notice marked "Appendix."46 Copies of
said notice, on forms provided by the Regional
Director for Region 4, shall be posted by Respon-
dents after being duly signed by their authorized
representative, immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dents to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify said Regional Director, in writing,
within 20 days from receipt of this Decision, what
steps have been taken to comply herewith .41
IT IS FURTHER RECOMMENDED that the complaint,
as amended , be dismissed in all other respects.
'° In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words " a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 4 , in writing , within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "